Decision #41/08 - Type: Workers Compensation
Preamble
The worker is appealing three decisions that were reached by the Workers Compensation Board
(“WCB”) in regard to her 1996 compensable claim for bilateral carpal tunnel syndrome (“CTS”).
After determining that the worker had permanent physical restrictions and was unable to return to her pre-accident employment, the WCB provided the worker with vocational rehabilitation services and benefits. On January 18, 2003, the WCB ended the worker’s compensation benefits as it determined that she was capable of earning a minimum weekly wage of $260.00 within National Occupational Classification (“NOC”) 6661 (Light Duty Cleaning).
In April 2007, the worker underwent left wrist CTS surgery. The WCB accepted the medical costs associated with the surgery but did not issue wage loss benefits as it determined that the worker did not suffer a loss of earning capacity given that she was not employed at the time of surgery.
The worker appealed the above decisions to the Appeal Commission and a hearing was held on January 9, 2008.
Issue
Whether or not the vocational rehabilitation plan with an occupational goal of working within NOC 6661 (Light Duty Cleaning) was appropriate;
Whether or not the worker is entitled to wage loss benefits after January 17, 2003; and
Whether or not the worker is entitled to wage loss benefits during the period of recovery from her left carpal tunnel syndrome surgery.
Decision
That the vocational rehabilitation plan with an occupational goal of working within NOC 6661
(Light Duty Cleaning) was appropriate;
That the worker is not entitled to wage loss benefits after January 17, 2003; and
That the worker is entitled to wage loss benefits during the period of recovery from her left carpal tunnel syndrome surgery.
Decision: Unanimous
Background
In 1996, the worker filed a claim with the WCB for bilateral CTS that she related to her work activities as a kitchen helper/prep worker. The claim for compensation was accepted and various types of benefits and services were paid to the worker. In August 1999, the worker underwent right wrist CTS surgery and second right wrist CTS surgery in August 2000.
In September 2001, it was determined that the worker had physical restrictions related to her right wrist which precluded her from returning to her pre-accident duties. She was then provided with assistance from the WCB’s vocational rehabilitation branch to help her find employment that met her right wrist restrictions to avoid lifting greater than 10 pounds and to avoid repetitive use of her right wrist.
An Individualized Written Rehabilitation Plan (“IWRP”) was developed for the worker with an occupational goal of NOC 6661. The duration of the plan was August 5, 2002 to January 17, 2003. The worker was provided the services of an employment specialist for a 24 week period. At the completion of the plan, it was determined that she would be capable of earning $260.00 per week. In the event that employment was not secured after the job search period, the worker’s benefits were to be reduced in accordance with WCB policy and earning capacity assessment practices.
On January 13, 2003, a WCB Employment Specialist (“ES”) provided a summary of the worker’s progress in her job search activities. He concluded that the worker was physically capable of performing the duties of NOC 6661, that there was a good labour market in NOC 6661, that the opportunity for the worker to work in this occupation had been presented but due to a high degree of pain and self-limiting behavior was not successful. He felt the worker was capable of earning a minimum weekly wage of $260.00.
In a letter dated January 16, 2003, the worker was advised that in accordance with her vocational rehabilitation plan, she was now considered capable of earning $260.00 per week which was the average starting wage of individuals employed in the industry of NOC 6661 as a light duty cleaner. Effective January 18, 2003 she was no longer entitled to further WCB wage loss benefits.
File records indicate that the worker was scheduled to undergo left wrist CTS surgery in April 2007.
Upon speaking with a WCB adjudicator on April 16, 2007, the worker advised that she has not found any employment since she was deemed capable of working on January 18, 2003. The worker noted that the pain in her arms prevent her from work. She applied for some jobs in 2003 but not since then. The adjudicator advised the worker that she would not be entitled to wage loss benefits when she had her left wrist surgery given that she has no loss of earning capacity.
In a decision dated April 16, 2007, the worker was advised that the WCB would cover the medical costs associated with her April 26, 2007 surgery and would monitor her recovery. It would not issue wage loss benefits for the upcoming surgery as she has no loss of earning capacity given that she has not worked since being deemed capable of working effective January 18, 2003 nor had she actively looked for employment since then. In June 2007, the worker appealed this decision to Review Office. She also appealed the WCB’s decision to end her benefits on January 18, 2003 as she claimed that she had been looking for jobs all the time but with the mention of her CTS condition, the job opportunities vanished.
On August 2, 2007, Review Office considered the worker’s appeals and made the following determinations:
- The worker was not entitled to wage loss benefits during the period of recovery from her left CTS surgery. Review Office noted that the worker had not been employed since her compensable injury and was not employed at the time of her surgery, therefore she did not incur a loss of earning capacity and was not entitled to wage loss benefits.
- NOC 6661- Light Duty Cleaning was appropriate. Review Office noted that an earning capacity analysis found that the physical activities in NOC 6661 were within the worker’s physical restrictions to avoid lifting greater than 10 pounds and repetitive use of the right wrist. It noted that a WCB occupational therapist found that this was a suitable employment goal for the worker. Review Office stated the video surveillance that was taken in May and June 2001 clearly indicated that the worker was capable of performing work activities in NOC 6661.
- The worker was not entitled to wage loss benefits after January 17, 2003. Review Office found no evidence to suggest that the compensable injury prevented the worker from obtaining or performing employment in NOC 6661 since her vocational plan was completed in January 2003. Given that NOC 6661 remained an appropriate goal for the worker, it followed that she was not entitled to wage loss benefits after January 17, 2003.
On October 12, 2007, the worker appealed Review Office’s decision to the Appeal Commission and hearing took place on January 9, 2008.
Following the hearing, the appeal panel requested and received additional information from the worker’s treating physical medicine and rehabilitation specialist. This information was forwarded to the worker for comment. On March 13, 2008, the panel met and rendered its final decisions on the issues under appeal.
Reasons
Applicable Legislation and Policy
The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and by policies made by the Board of Directors of the WCB.
This appeal deals with provision of benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.
The Board of Directors have made policies dealing with the provision of vocational rehabilitation and the payment of benefits. WCB Policy 43.00 deals with the provision of vocational rehabilitation services and benefits under subsection 27(20) of the Act. WCB Policy 44.60.20.01, Date of Retirement, deals with workers who are capable of employment and who voluntarily retire or withdraw from the workforce.
Worker’s Position
The Appeal Commission had arranged for an interpreter to attend the hearing and to assist the worker, however, the interpreter did not attend at the appointed time. The panel offered to adjourn the hearing to a new date. The worker elected to proceed with the hearing and be assisted by a friend who was fluent in English and her language.
The worker advised that she had not prepared a submission. The panel proceeded to ask the worker questions regarding the issues before it.
The worker advised that she tried working as a light duty cleaner. She advised that the WCB told her she would not have to lift but when she attended a trial job she was told that she had to lift and dump heavy garbage cans. She said that after one hour she had a “very heavy pain” in her hands. She went to see her doctor after this.
The worker acknowledged that she was not to lift more than 10 pounds. She said that any lifting can cause pain.
Regarding light duty cleaning, the worker advised that she can work in a food court wiping tables and cleaning trays but can not push carts. She said that when shopping, her daughter pushes the shopping cart.
When asked if she could perform light duty work in 2003, she replied that she could. She acknowledged that her physician told her she could do light duty work.
The worker advised that she has lots of pain and takes medication for the pain.
Regarding her entitlement to benefits after January 17, 2003 the worker advised that she had pain and numbness in her hand. She indicated that her condition after January 17 was the same as it was before this date. She advised that she applied for a job at a grocery store but was told that she would not be hired because of her condition. She said that if the right job was available she would try to work.
Regarding her current activities she advised that she does light cooking and cleaning at home.
The worker advised that in 2005 her left wrist got worse so she went back to the doctor. The worker confirmed that she had surgery on her left wrist on April 26, 2007 for which she is seeking benefits. She said that nothing has changed as a result of the surgery, she is no better and that both wrists are the same.
Analysis
Issue 1
The first issue before the panel was whether the vocational rehabilitation plan with an occupational goal of working within NOC 6661 (Light Duty Cleaning) was appropriate.
The panel reviewed the claim file and discussed this issue with the worker at the hearing. The panel notes that an earning capacity review concluded there was a high demand for this occupation and that the duties of this occupational group are within the restrictions assessed by a WCB occupational therapist for the same injury and job tasks but on a different claim. The panel notes the restrictions in place at the time the plan was implemented were to avoid lifting greater than 10 pounds and repetitive use of the right hand. The worker confirmed that she could perform light duty employment. She also confirmed that she agreed with the restriction of no lifting greater than 10 pounds. The panel finds that the vocational rehabilitation plan and NOC 6661 are appropriate for the worker and were prepared in accordance with WCB Policy 43.00.
The worker’s appeal of this issue is denied.
Issue 2
The second issue was whether the worker is entitled to wage loss benefits after January 17, 2003.
The panel finds that the worker was capable of working in NOC 6661 after January 17, 2003. In accordance with the vocational rehabilitation plan, the worker was considered capable of earning $260.00 per week, which was the average starting wage of individuals in NOC 6661. The panel notes the worker’s evidence at the hearing that she could perform light duty cleaning. Accordingly, the worker is not entitled to wage loss benefits after January 17, 2003.
The worker’s appeal of this issue is denied.
Issue 3
The third issue was whether the worker is entitled to wage loss benefits during the period of recovery from her left carpal tunnel syndrome surgery.
The WCB and Review Office found that the worker had not been employed since her compensable injury and was not employed at the time of the surgery therefore did not incur a loss of earning capacity and was not entitled to wage loss.
The panel finds the decision to be contrary to long standing WCB practice to pay wage loss benefits to workers who are unable to work and earn income when they undergo surgery for a compensable injury and during the related recovery period.
Of note in this case is that the worker had been deemed capable of working and earning $260.00 per week after January 17, 2003. However, on the date of surgery and during the related recovery period, the worker was not able to earn the deemed income and therefore suffered a loss of earning capacity.
With respect to removal from the workforce, a review of WCB policies indicates that Policy 44.60.20.01 applies to workers who have retired from or withdrawn from the workforce. The panel finds that the worker’s lack of participation in the workforce does not meet the clear requirements of this policy. It cannot be said that the worker retired from the workforce as provided in this policy.
In this case, the question is whether the worker is able to work during the recovery period, not whether the worker was employed prior to the surgery. The panel finds that the worker is entitled to wage loss benefits during the period of recovery from her left CTS surgery to the extent that she was not able to work during this period.
The worker’s appeal of this issue is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 26th day of March, 2008